South Yorkshire Police, R (on the application of) v Sheffield Crown Court & Anor

Under Criminal Justice and Police Act 2001, the question on an application for return of seized property is whether the property falls outside the statutory grounds authorising retention. The court must apply the statutory test, including whether there are reasonable grounds for believing that the property was obtained through an offence and that retention is necessary to preserve it. That test differs from asking whether the property is probably stolen. A Crown Court order under section 59 concerns return of goods, not final determination of ownership. Where competing applicants exist, the court determines to whom goods should be returned without deciding title. A percentage return of mixed property requires sufficient evidence and consideration of the statutory separation provisions.

South Yorkshire Police challenged an order made by Sheffield Crown Court on 8 April 2013 requiring the return to Aluminium Recycling (UK) Ltd of 37 tonnes of granulated copper and seven skips, together with costs. The Crown Court had found that the seizure was lawful but ordered the return of approximately one quarter of the granulated copper under section 59(3)(d) of the Criminal Justice and Police Act 2001.

British Telecommunications plc claimed an interest in the seized copper but had not applied under section 59 or attended the hearing. The issues were whether the Crown Court had applied the correct statutory test, whether the police could retain property while ownership was disputed, whether the procedure was unfair, and whether the percentage return was properly justified.

1. Claim allowed and Crown Court order quashed. The Crown Court had made a material error of law in applying section 59(3)(d) of the Criminal Justice and Police Act 2001.
2. The correct question was whether the seized property, or part of it, fell outside section 53(3). Property could not be ordered to be returned to the extent that its retention was authorised by section 56. The court therefore had to ask whether, on the balance of probabilities, there were no reasonable grounds for believing that the property had been obtained through an offence and that retention was necessary to prevent its concealment, loss, damage, alteration or destruction.
3. The Crown Court had instead asked whether all the property was stolen. That was materially different. The threshold of reasonable grounds for believing was lower than the balance of probabilities, although higher than mere suspicion. The guidance in Castorina v The Chief Constable of Surrey [1988] WL 622865 (10 June 1988) illustrated the low threshold applicable to suspicion.
4. The argument based on section 58 failed. Section 58 regulated the person to whom property should be returned and permitted temporary retention while competing claims were resolved. Section 59 did not determine ownership. A Crown Court decision under section 59 merely determined to whom goods should be returned and did not create res judicata on title. Here, BT had not made a section 59 application, so there was only one applicant.
5. There was no procedural unfairness or breach of Article 6 ECHR or the First Protocol, Article 1. BT had notice that an application had been made and could have applied to participate or sought return of the property.
6. The percentage order was independently unsupported by the evidence. The evidence did not justify the judge’s estimate that 25 per cent of the copper satisfied the statutory test. The court did not finally determine the hypothetical issue whether mixed property could lawfully be separated, but noted that sections 53(3)(c) and 53(5) required the statutory separation and prejudice questions to be addressed.
7. The costs order was set aside for reconsideration. Costs were to be determined afresh, including the costs of the judicial review. There was no order as to BT’s costs.

• Sheffield Crown Court: On 8 April 2013 ordered the return of part of the seized copper and seven skips to Aluminium Recycling (UK) Ltd, with costs.
• High Court (Administrative Court): The order was quashed. The costs issue was to be determined afresh.